Summary of Opinion — Second Division, Inner House, Court of Session

Factual and Procedural Background

This judgment concerns a reclaiming motion by Company A against an interlocutor of the Lord Ordinary dated 9 January 2025. The petition was brought by the Petitioner seeking declarators that Company A had failed to comply with duties under sections 29(1)(c) and 31(2) of the Housing (Scotland) Act 1987, and an order ordaining Company A to make suitable permanent accommodation available. Permission to proceed was granted on 18 January 2024 and a first hearing took place on 16–17 September 2024. The Lord Ordinary issued opinion on 24 December 2024 and pronounced orders on 9 January 2025 declaring breaches of sections 29(1)(c) and 31(2) and ordaining Company A to make permanent accommodation available by 28 February 2025. The Petitioner accepted a secure tenancy on 31 January 2025; that tenancy is five-apartment accommodation (one bedroom accessible only by stairs) located further from the children's schools than some prior interim offers.

Legal Issues Presented

1. Whether Company A breached its interim duty under section 29(1)(c) of the Housing (Scotland) Act 1987 by failing to secure suitable interim accommodation for the Petitioner and her household, and if so the period of any breach.
2. Whether Company A breached its duty under section 31(2) of the Housing (Scotland) Act 1987 to secure that permanent accommodation becomes available for the Petitioner within a reasonable time.
3. Whether the Lord Ordinary erred in law in (a) assessing suitability by reference to the reasonableness of the Petitioner’s refusals rather than the rationality of the local authority officers’ suitability assessments, and (b) in ordaining Company A to make permanent accommodation available (i.e. making a mandatory order) rather than limiting relief to declaratory relief and a short continuance.
4. Whether specific offers of interim accommodation (two two-bedroom flats in separated floors at Lincoln Avenue, and two two-bedroom flats one floor apart at Broomhill Lane) were suitable interim accommodation under section 29 read with the Unsuitable Accommodation Order 2014.

Arguments of the Parties

Company A's Arguments

• The Supreme Court's guidance in Glasgow City Council v X (2025) establishes that the needs of the household play differing roles in sections 29 and 31: section 31 is outcome-focused while section 29 is a process duty; suitability assessments under section 29 are for the local authority and subject to a rationality supervisory standard.
• The Lord Ordinary erred by focusing on whether the Petitioner’s refusals were reasonable rather than asking whether the housing officers’ assessments were irrational; the officers had appropriate expertise and had taken household needs into account when assessing the Lincoln Avenue and Broomhill Lane offers.
• The Lord Ordinary erred in finding other grounds of unsuitability (for example, lack of living-room use or fire risk) where the officers' evidence indicated compliance with the 2014 Order and minimum safety standards, and where such matters were not properly averred in the pleadings.
• Company A accepted a limited period of breach of section 29 (conceding unsuitability between 3 March 2023 and the Lincoln Avenue offer on 17 October 2023) but submitted that otherwise it had discharged section 29 and had not yet breached section 31(2) because the reasonable time to secure a scarce five-apartment ground-floor adapted property had not elapsed; if there were a breach, a declarator and short continuance would have been the appropriate remedy rather than an immediate mandatory order.

Petitioner's Arguments

• The Lord Ordinary correctly found that the Anniesland accommodation became unsuitable by 3 March 2023 for reasons including the Petitioner’s mobility deterioration, lack of adequate accessible toilet/washing facilities for the household, inability to use mobility aids in the flat, significant overcrowding and being largely housebound.
• The Lincoln Avenue and Broomhill Lane offers were unsuitable interim accommodation because the Petitioner could not access one of the pair of flats in each offer (Lincoln Avenue: 19th floor flat; Broomhill Lane: practical difficulties between 10th and 11th floor) and because the configuration would effectively remove use of a living room and increase fire or access risks; refusal of those offers by the Petitioner was reasonable.
• The Lord Ordinary was entitled to conclude that more than a reasonable time had elapsed for Company A to secure permanent accommodation, having regard to the pressing need, the particular accommodation required (a large adapted property), and what the Lord Ordinary found to be an absence of exploration of all possible options by Company A.
• If a breach of section 31(2) were established, making an order ordaining Company A to perform the duty was within the court's discretion in these circumstances.

Table of Precedents Cited

Court's Reasoning and Analysis

The court (Judges Doherty and Armstrong) framed its analysis around statutory construction, the supervisory standard applicable to section 29 and article 4(b) (rationality), and the contextual reasonableness of time for performance of section 31(2). The key steps in the court's reasoning were:

1. Section 29(1)(c) is a process duty requiring the local authority to take account of the household's needs; the suitability assessment is for the authority and is reviewable on a rationality standard. The court reiterated that interim accommodation can differ from permanent accommodation in what is suitable in practice.
2. The court accepted Company A's concession that the Anniesland flat became unsuitable by 3 March 2023 because of the Petitioner’s mobility deterioration, rendering her largely housebound.
3. The court found that the Lord Ordinary erred by concentrating on whether the Petitioner’s refusals of the Lincoln Avenue and Broomhill Lane offers were reasonable rather than assessing whether the housing officers’ decisions that those offers were suitable were irrational. The proper question is whether the officers, possessing expertise and experience and having taken household needs into account, reached a decision within the range of reasonable decisions.
4. On the material before the officers when they made their assessments, the court concluded that the officers' decisions that Lincoln Avenue (two flats in same block, five floors apart but with lift access to one flat and stair/lift combinations for movement) and Broomhill Lane (two flats one floor apart with lift access) were suitable interim accommodation were not irrational. The court accepted the officers' evidence that the offers complied with the Unsuitable Accommodation Order 2014 requirements (wind and watertight, minimum safety standards, locality and access to schools), and that two-unit solutions could permit practical family living (Sharif).
5. The court rejected additional grounds of unsuitability relied upon by the Lord Ordinary (such as lack of use of a living room or unpleaded fire risk) because they were either contradicted by the officers' evidence, not clearly supported by the material available to the officers when making their assessments, or were matters of the Petitioner's personal preference rather than indicators that an officer's assessment was irrational.
6. On section 31(2), the court proceeded on the parties' common ground that the duty arises immediately but that there is a reasonable time for performance. The court observed that reasonableness must be judged in light of the whole circumstances, including whether section 29 duties are being met, scarcity of required accommodation, and competing priorities. Because Company A had, except for the period 3 March to 17 October 2023, secured suitable interim accommodation and had explained the acute scarcity of the type of permanent property required, the court concluded that the time for performance had not been unreasonably exceeded at the Lord Ordinary's decision date.
7. Although the Lord Ordinary ordained Company A to make permanent accommodation available, the court expressed that, had it been necessary to make a similar discretionary choice, it would have preferred a declarator of breach with a short continuance to permit Company A to act rather than immediate imposition of a mandatory order. The court emphasised constitutional and practical concerns about courts assuming the implementation role of public authorities and the risk of contempt proceedings if mandatory orders are made prematurely.

Holding and Implications

DISPOSITION: The reclaiming motion was allowed. The court recalled the Lord Ordinary's interlocutor of 9 January 2025, repelled the Petitioner’s pleas-in-law, sustained Company A's second, third and fourth pleas-in-law, and refused the petition. The court reserved questions of expenses.

Consequences and immediate effects:

• The court held that Company A was in breach of its section 29(1)(c) duty only for the period from 3 March 2023 until 17 October 2023 (the date of the Lincoln Avenue offer), a period admitted by Company A.
• The court held that Company A was not in breach of section 31(2) as at the Lord Ordinary's decision because, in the whole circumstances (including the provision of suitable interim accommodation from 17 October and the scarcity of appropriate permanent accommodation), a reasonable time to secure permanent accommodation had not yet elapsed.
• The court indicated that, had compulsory performance been warranted, it would have exercised caution before imposing a mandatory order at that stage and would have preferred declaratory relief with a short continuance to allow Company A to perform its statutory duties.
• The Petitioner had accepted secure tenancy accommodation on 31 January 2025; the reclaiming motion did not affect that outcome and the court proceeded to determine the broader legal issues notwithstanding the changed circumstances because of public interest and potential guidance value.

Broader implications:

The court restated and applied principles about the distinct roles of sections 29 and 31 (process duty v outcome duty), the supervisory rationality standard for interim accommodation suitability, and the contextual assessment of reasonable time for securing permanent accommodation. The judgment provides guidance for authorities and applicants on the assessment of two-unit interim solutions, the standard of review, and the court's discretion regarding mandatory enforcement orders. The court exercised restraint in ordering performance and signalled preference for allowing public authorities an opportunity to comply after a declarator in many cases.